Category

Personal Injury Law

Wrongful Death

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Limitation Period

How long do I have to sue when my loved one was killed as a result of a motor vehicle accident?

Losing a loved one in a motor vehicle accident is an extremely traumatic situation. No amount of money can compensate someone for the loss; however, in Prince Edward Island, family members can bring an action pursuant to the Fatal Accidents Act, R.S.P.E.I. 1988, Cap. F-5.

In PEI, generally, the limitation period to sue a negligent driver who caused the death of a loved one is 2 years from the date of the accident; however, you always want to keep in mind who you are suing. If your case involves a Government entity, then different limitation periods may be at play. Furthermore, if the deceased had minor dependants, then different limitation periods apply for those minor children. Children have until 2 years after they turn 18 to sue.

Your best bet is to contact a lawyer as soon as possible to discuss your situation and what will be required to protect your claim,

along with determining which family members may be able to make claims for their losses. Additionally, an Executor or Administrator of the deceased’s estate may need to be appointed before you can commence any legal action and therefore you want to give yourself as much time as possible to work with your lawyer and commence the necessary actions.

If you’ve lost a loved one as a result of an accident, please contact one of Key Murray Law’s experienced personal injury lawyers for a free initial consultation.

Cynthia A. Taylor
Associate
cynthia.taylor@keymurraylaw.com
902-368-7824

 

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
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Disability Insurance

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“Peace of Mind” Coverage

When you are injured or otherwise unable to work, having disability coverage provides for corresponding disability benefits can offer peace of mind such that you know the financial stresses arising from your disability will be eased, at least in part. In fact, the Supreme Court of Canada has found disability benefit policies to be “peace of mind” policies, thus triggering a higher level of good faith obligations from the insurance company, even beyond similar obligations found to arise from other types of insurance policies.

Insurance companies are entitled to reasonably reject claims that are not covered by a policy and the onus (burden) to establish that your claim fits within the policy rests with you (the disabled person) to show that you meet the definition of disabled within the policy and thus are entitled to receive benefits. While all insurance policies are different, often the definition of disabled will be that the insured is unable to perform the tasks of her or his own occupation.

To establish that you are in fact disabled, what is typically required is objective medical evidence that the insured meets the applicable definition of disabled. Medical evidence can come from various sources, including your family doctor, specialists, physiotherapists, and other medical professionals. You should gather as much of this information as you can as it relates to your disability to provide to your insurance company.

Insurance companies may require and seek further medical information to substantiate your claim.

However, the information requested needs to be reasonable and needs to be necessary to prove you meet the definition of disabled.

When obtaining medical information to substantiate your claim, or responding to a denial of benefits, it is essential that you are aware of the various limitation periods that may be at play. Within the insurance policy, there may be appeal periods for which you must respond to a denial of benefits if you wish to do so in the internal appeals processes outlined in the policy. Often the internal appeal period is thirty (30) days but please review your policy as these periods vary from policy to policy.

Additionally, Prince Edward Island’s Insurance Act outlines a maximum one (1) year period from the time you are entitled to receive payment under the policy to commence a Court action if your insurance company denies payment. The one year period is typically found in insurance policies; however, some insurance policies do provide a longer period to commence a Court action.

If your claim is rejected by your insurance company without cause, or providing reasons for doing so, in the face of medical evidence which would appear to establish eligibility for benefits, your insurance company runs the risk of attracting a claim of bad faith and corresponding aggravated and/or punitive damages. Aggravated and punitive damages are meant to guard against the most egregious conduct; however, due to the “peace of mind” nature of disability insurance contracts, the possibility of this type of damage arising in an improper denial of disability insurance is increased.

If you are dealing with a denial of disability benefits and/or feel your insurance company is treating you unfairly, the lawyers at Key Murray Law practicing in the area of personal injury law would be happy to discuss your rights, obligations, and options with you at a no fee initial consultation.

 

Richard A. Collier
Associate
902-368-7830
richard.collier@keymuarrylaw.com

 

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
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Mental Illness

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Has the Supreme Court of Canada addressed the stigma against mental illness?

When it comes to injuries sustained as a result of the negligent conduct of another, a trial judge or jury is not concerned with diagnosis of the injury, but rather with symptoms and their effects.

While a correct diagnosis of a mental injury is imperative to a successful recovery of that condition, the adjudication of such an issue does not require such classification, according to the Supreme Court of Canada. The case of Saadati v Moodheadi, 2017 SCC 28, is a milestone for mental injury compensation in personal injury claims. Prior to this decision, the case law in Canada was such that civil claims alleging mental injury could only be successful if expert evidence revealed that the injury in question qualified as a recognized psychiatric or psychological illness or condition. The unanimous Saadati decision, delivered in June of 2017, abolishes that discriminatory obstacle to compensation for victims suffering from mental injuries as a result of somebody else’s negligent conduct.

In Saadati, the claimant’s family members testified that following the accident he had changed. They noted that he now spoke more slowly, was less charming and was no longer happy, outgoing and cheerful. This evidence was sufficient for the court to find that mental injury had been sustained and damages were awarded as such.

The Court took this opportunity to address the requirements of proving alleged mental injury to the requirements of proving alleged physical injury where third party negligence is involved. The requirement of a diagnosis does not exist for plaintiffs attempting to prove physical injury. This inevitably resulted in unequal protection for victims of mental and physical injuries. Proponents of the prior rule for proving mental injury voiced concerns of floodgate issues. This concern was quickly dismissed as untenable by the Court. The SCC stated that the elements to be made out in a negligence action (a duty of care, a breach, damage and a legal and factual causal relationship between the breach and the damage) paired with the threshold for proving mental injury as stated in Mustapha v Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, sufficiently protect against unworthy claims.

In its new form, the law regarding mental injury places an onus on the claimant to show that the disturbance is serious and prolonged, surpassing ordinary annoyances, anxieties and fears.

. While expert evidence may assist in this determination, it is no longer necessary and the judge or jury is open to use other evidence produced by the plaintiff to determine whether mental injury exists on a balance of probabilities. This mirrors the principle that a negligent defendant need only be shown to have foreseen injury. Such an injury does not need to be a particular psychiatric illness which carries a specific label. The relationship between a reasonably foreseeable mental injury and a diagnostic classification scheme for mental illnesses and conditions is unnecessary and placed an unfair hurdle before plaintiffs suffering from non-physical injury as a result of a third party’s actions.

Mental and physical injury are finally starting to be treated equally in the law of negligence. This decision is a step in the right direction, addressing the stigma that people suffering from mental illness face daily. The primary objective of tort law is to compensate through damages the injuries sustained by an individual to make that person whole again. The SCC’s new articulation of the law relating to mental injuries complies with this objective.

If you believe you have suffered a mental injury as a result of someone else’s negligence, one of our lawyers at Key Murray Law will be pleased to offer you a no-charge initial consultation to talk about your case and any compensation you may be entitled to.

 

Tessa Hills
Law Student
902-368-7810
tessa.hills@keymurraylaw.com

 

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.

 

Lawyer Cynthia Taylor practices law in Charlottetown, Prince Edward Island with the firm Key Murray Law.

I was in an accident – what do I do??

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So you’ve been injured in a motor vehicle accident, or injured as a result of a slip and fall, and think you may need to make a personal injury claim for your injuries and losses.

Lawyer Cynthia Taylor practices law in Charlottetown, Prince Edward Island with the firm Key Murray Law.

What should you do?

Obviously, first you will want to seek appropriate medical attention and contact the police, if necessary.

If you are going to be making a personal injury claim, certain information will be important for your case, and sometimes you can only obtain this information right away. You want to make sure you’ve gathered the appropriate information and evidence.

 

 

 

 

You’ll need:

• Photos of the scene – it’s key that they were taken as close to the time of the incident as possible so the conditions haven’t changed. Photos taken from varying angles and distances can be helpful.
• Photos of damage to any vehicles or other property as well as photos of any injuries you have sustained, such as cuts, bruises, etc.
• If it’s a motor vehicle accident, obtain information, including all contact info for the other driver(s), along with insurance information for the other driver(s); use your cell phone to take pictures of the other driver’s vehicle registration and insurance slip
• Obtain contact information for any witnesses.
Sometimes obtaining this information may not be possible if you have been severely injured. You may want to ask a family member or friend to assist you in this regard.
If you’ve been involved in an accident or an incident where you suffered personal injury or property damage, please contact one of Key Murray Law’s experienced personal injury lawyers for a free initial consultation.

Cynthia A. Taylor
Associate
cynthia.taylor@keymurraylaw.com
902-368-7824

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
Richard Collier is a lawyer with Key Murray Law in Charlottetown, Prince Edward Island.

Buckle Up

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Seatbelts from a Personal Injury Perspective

Richard Collier is a lawyer with Key Murray Law in Charlottetown, Prince Edward Island.

Failing to wear a seatbelt can result in a number of adverse legal consequences, including:

1) Your being charged under the Highway Traffic Act, for failing to wear a seatbelt; and
2) If you are involved in a motor vehicle collision, failing to wear a seatbelt may result in you not being fully compensated for your injuries.

Contributory negligence is a concept in negligence law that sees the injured party bearing some responsibility for the injuries they have suffered. If an injured party is found to be contributorily negligent (partially at fault) a Court will reduce any damage award (monetary compensation) the injured party may be entitled to by a percentage corresponding with the party’s contributory negligence.

A fairly common example of contributory negligence is failing to wear a seatbelt.

If you were not wearing a seatbelt at the time of a car accident, and it can be shown that your failure to do so caused an injury or increased the severity of an injury, your damages will be reduced.

The standard range for a reduction for contributory negligence as a result of failing to wear a seatbelt is 5-25%. The vast majority of caselaw outside Prince Edward Island shows that 25% is a hard cap and discounting damages more than 25% solely because of failure to wear a seatbelt would be unreasonable. However, in Boertien v. Carter (1995), 135 Nfld. & PEIR 91 (PEISCTD) (WL) Justice Jenkins, as he then was, preferred using the 25% as a guideline, and found that the level of contributory negligence should be ascertained on a case by case basis, which in some cases may be above 25%. The cap question has yet to be definitively answered in Prince Edward Island as in Boertien v. Carter, Justice Jenkins found the plaintiff 20% liable and the cap question was not directly at issue.

Where in the 5-25% range the failure to where a seatbelt falls will depend on the facts of the case, and the degree to which the failure to wear a seatbelt caused or contributed to the injured party’s injuries. Additionally, adding in other contributory negligent actions or omissions, such as driving while impaired, driving while improperly situated within the vehicle, or engaging in other reckless behaviour that may have caused or contributed to the collision or worsening of the injuries sustained, may result in increasing the percentage of contributory negligence.

Whether or not failing to where a seatbelt is an issue in your personal injury matter, please remember all cases are different and the facts of each case will determine the presence and extent of any contributory negligence. If you are injured in a motor vehicle collision or otherwise, one of Key Murray Law’s Personal Injury lawyers will be pleased to offer you a no-charge initial consultation to talk about your case and any compensation you may be entitled to.

Richard A. Collier
Associate
Richard.collier@keymurraylaw.com
902-368-7830

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
Geoffrey Kowalski, Key Murray Law.

WARNING: Hot Beverage – Personal Injury Law

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We have all heard the classic personal injury story: a customer buys a hot beverage at the drive-thru, the customer spills the beverage causing severe burns and sues the company for negligence.

It’s never actually happened though, right?

 

The Provincial Court of British Columbia, in Williams v. Starbucks, 2017 BCPC 0027, recently heard a case quite similar to the one above. The Plaintiff purchased a tea, among other items, from a Starbucks drive-thru, and as she held the tea and drove through the parking lot, the lid “popped off” and spilled into her lap. The Plaintiff suffered second and third degree burns on her left thigh and gluteal area.

The Plaintiff subsequently sued Starbucks, claiming that the cup became distorted by the temperature of the liquid, that the cup or lid was defective, that the lid was not properly placed on the cup by the Starbucks employee and that the temperature of the tea was hotter than it should have been.

As with any negligence claim, the onus is on the Plaintiff to show that the Defendant owed the Plaintiff a duty of care and breached the standard of care. The Defendant stated this, noting that it is not the Defendant’s responsibility to prove how or why the incident occurred, but that it was the Plaintiff’s responsibility to prove that the cup or liquid was defective or unsafe.

After a review of the evidence,

including an inspection of the cup and lid, the Court determined that the Defendant did not breach the standard of care owed to the Plaintiff. The cup had a warning that it contained a hot liquid, was covered by a cardboard sleeve to protect the hand of the customer and the Court noted that there was no evidence that the cup or lid had was or had become defective.
Sometimes accidents are just accidents, like the case above; however, sometimes accidents happen due to the actions or inactions of others. If you’ve been involved in an accident or an incident where you suffered personal injury or damage, please contact one of our experienced personal injury lawyers for a consultation.

Geoffrey Kowalski
Articled Clerk
geoff.kowalski@keymurraylaw.com
902-368-7822

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
Lawyer Cynthia Taylor practices law in Charlottetown, Prince Edward Island with the firm Key Murray Law.

Understanding Your Automobile Insurance Policy

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If you’ve been involved in a motor vehicle accident, you may have questions about your insurance policy.

You need to know what sections apply, what benefits you are entitled to, and so on. Prince Edward Island’s Standard Automobile Policy applies to all automobile insurance policies in PEI.

The Policy contains 4 important sections, which can be broken down as follows:

Section A is third party liability and comes into play when you are injured in a motor vehicle accident and another driver is at fault. The other driver’s insurance company will be the one responding to any claim for personal injuries and losses that you may have experienced.

Section B is no fault accident benefits which (for accidents after October 1, 2014) covers up to $50,000.00 in medical and rehabilitation expenses and up to $250.00 weekly for loss of income (the lesser of $250.00 per week, or 80% of the insured’s gross weekly income), amongst other benefits. Your claim for these benefits would be through your own insurance, or the insurance of the vehicle you were driving at the time of the accident.

Section C is for damage to your vehicle or property as a result of an accident.

Section D is coverage for you if you are injured by an unidentified driver or uninsured driver.

Additionally,

if you purchased Standard Form Endorsement 44 coverage (SEF 44) as part of your insurance policy then you may have coverage if the other motorist is inadequately insured. Take for example a situation where you have suffered catastrophic injuries in an accident. If the other motorist only has $500,000.00 in coverage, but you have your own coverage of $1,000,000.00, then your insurance company (under the SEF 44 endorsement) will cover your losses above the limits of the other motorist’s policy.
If you have been injured as a result of a motor vehicle accident, the lawyers at Key Murray Law practising in the area of Personal Injury Law ( http://keymurraylaw.com/personal-injury/ ) would be happy to discuss your rights and options with you at a no fee initial consultation.

Cynthia A. Taylor
Associate
cynthia.taylor@keymurraylaw.com
902-368-7824

Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.